Kabuki Democracy—and How to Fix It

Kabuki Democracy—and How to Fix It

Obama’s election was not the game changer progressives hoped for. For that, we need to remake our democracy’s rules.


This article is adapted from Eric Alterman’s Kabuki Democracy: The System vs. Barack Obama (Nation Books). Copyright © 2011. Ari Melber, The Nation’s net movement correspondent, researched and drafted sections of this chapter.

It’s no secret our democracy does not work well anymore. In many respects, including that particularly large swath of issues that involve someone’s monetary profit and someone else’s loss, it can barely be said to be a democracy at all—unless one takes the view held by some in Washington and Wall Street that money fulfills the function not only of free speech but of citizenship itself. If America is to ameliorate its current democratic dysfunction anytime soon, merely electing better candidates to Congress is not going to be enough. We need a system that has fairer rules, that diminishes the role of money and that encourages politicians and journalists to investigate and portray the realities they observe honestly, thereby reducing the distorting lenses of finance, ideology and ignorance. And yet these items rarely feature on any progressive agenda.

This is, in many ways, understandable. Ending the Bush/Cheney administration, and defeating the Christian conservative and corporate base on whose behalf it acted, required emergency measures of a largely defensive nature. And the chance to replace George W. Bush with Barack Hussein Obama both for symbolic and pragmatic reasons in 2008 appeared so enticing (and exciting) that we can all be forgiven for losing ourselves in the romance of focusing our time, money and energies on making this man America’s forty-fourth president.

But the 2008 election was not a game changer after all. For change of the kind Obama promised and so many progressives imagined, we need to elect politicians willing to challenge the outdated rules of the Senate, fight for publicly financed elections and, in the absence of that, struggle against the Supreme Court’s insistence on giving corporations the same free speech rights as individuals. We need smarter organizations that pressure politicians as well as pundits and reporters, not necessarily to see things our way but to hold true to the ideals they profess to represent. We must work to transform our culture to re-ennoble the notion of the “public good.”

Some of the challenges standing in our way look to be all but impossible to overcome, like the blatant limitations on democracy inherent within the Electoral College or a Constitution that grants Wyoming and California the same power in the Senate. Others, meanwhile, are maddeningly complex, such as Senate rules regarding cloture and the like. But particularly in light of the 2010 election, apathy is no option. A little imagination and a great deal of hard work and patience can help put us on a path to a more democratic and equitable America. But don’t expect it to be easy, and don’t be surprised at the resistance of those who profit from politics as usual.

The Broken Senate

Congress has become a place where, most of the time, nothing much happens. Once in a great while, however, because of the political investments of one side or another, a massive piece of transformative legislation grows too big to fail and is somehow rammed through Congress without much concern for the parliamentary niceties that had up until that moment dominated the process. The Obama administration passed weakened versions of healthcare reform and financial regulation in this fashion but failed with cap and trade.

Most voters do not follow politics closely and hence remain largely uninformed about the precise nature of our system’s dysfunction. This allows activists who work on specific issues to manipulate the process and shape legislation up to the final vote with hardly anyone paying attention. And although once upon a time partisans were satisfied to earn a legislator’s nay vote, the new expectation has become to find a way to kill it.

Clearly, the secret hold that allows senators to delay business on any legislation for as long as they like deserves to die. The Senate has attempted to quash this practice. In a standoff that captures the absurdity of this body’s method of self-policing, a 2006 bill to expose secret holds was itself the victim of a series of secret holds. To quote Oregon’s Ron Wyden from the floor debate, “That pretty much says it all.” Eventually, the Senate did pass the Honest Leadership and Open Government Act, which purported to end secret holds and demanded that senators stand by them in public. But, true to form, the act lacked any credible enforcement mechanism. It will likely change nothing.

A more effective tack would be to remove the fiction of proxy holds from the Senate rules. New rules might require any senator who issues an objection on the Senate floor to take public responsibility for the hold by the end of that day’s session unless another senator asks to be credited in his stead. This would ensure that any senator listed on a controversial hold could force a colleague to take the heat for it or withdraw the hold. It is hard to imagine that the targets of many recent holds would be able to withstand this test. For instance, the obstructionism of Oklahoma Republican Tom Coburn was finally overcome by a time-consuming series of procedural votes scheduled by Harry Reid and Co. to pass a food safety bill late in the 111th Congress; but it would never have happened without the luxury of a lame-duck Congress.

Bringing holds out into the open would subject them to public accountability and backlash. But the undemocratic ability of a single senator to stop most Senate business would remain. Apart from the unanimous consent procedure, party leaders generally choose to honor holds as evidence of a senator’s threat to filibuster (even in cases where it seems obvious that a senator has little intention of making good on the threat). Countering that gridlock requires addressing the filibuster itself. Although rules surrounding filibusters are arcane, effective reform need not be. The key objective must be to preserve the legitimate tactic of reasonable delay by a dedicated minority to provide for more debate, more information and more public awareness about proposals that could soon carry the force of permanent law while preventing purposeful and permanent obstruction of majority rule. For example, the Patriot Act, which sailed through Congress in just four days during the panic after the September 11 attacks, would clearly have been a better law if a group of senators had been able to ensure that its most controversial aspects got a more thoughtful and thorough hearing.

In a surprising development in late December, every returning Senate Democrat signed a letter circulated by Carl Levin of Michigan and Mark Warner of Virginia urging changes in the way the filibuster is conducted. One likely change will be a prohibition on senators attempting a filibuster before a bill reaches the floor, unless they can demonstrate the support of at least forty of their colleagues, and they would have to remain on the floor to sustain it. This would ensure that “filibusters…be conducted by people who actually want to block legislation instead of people being able to quietly say ‘I object’ and go home,” according to Missouri Democrat Claire McCaskill. The changes, which are being spearheaded by the newer members of the Democratic Caucus over the objections of some of their elders, like the retired Chris Dodd of Connecticut, may also include a vote in favor of the proposal put forth by New Mexico Democrat Tom Udall to require a mere majority to change the Senate rules at the beginning of the session, rather than the current need for a two-thirds majority; this vote will occur on January 5, as this article goes to press, at the opening of the 112th session. If the filibuster cannot be avoided, Senator Tom Harkin has proposed a series of measures to ensure that it does not go on forever. He has suggested a gradual approach to grinding down the number of votes required to end a filibuster to a simple majority. An opening vote to “break” a filibuster would still require sixty votes, but a second motion following a forty-eight-hour delay might need only fifty-seven votes, and so on. The number needed would eventually reach fifty-one. Ultimately, the majority would rule, but the minority would retain the opportunity to delay that victory and draw attention to its concerns in the process.

Corporations, United

The reforms for these structural constraints, however, are hindered not only by the structural constraints themselves—like the Kafkaesque secret hold on a bill to ban secret holds—but also by the character of the reform constituency. It’s not easy to persuade incumbents to reform the system that they have worked so hard to game. As Newsweek columnist Ezra Klein notes, “They’ve got donor networks, relationships with lobbyists, corporate friends, and activist groups that will help them. Their challengers don’t.”

What’s more, it can be awfully difficult to get media attention for process and precedent. And it’s a rather significant challenge to convert the public disgust with Washington and concerns about corporate corruption of politics into informed support for procedural proposals that operate at least one layer apart from policies that affect people’s lives. Finally, it is no simple matter to persuade good-government liberals to play the kind of hardball required to win the fights these reforms inevitably involve.

The severity of our political crisis may change some of these dynamics. For example, an unusual alliance of twenty-seven high-dollar donors went “on strike” for the first time in 2010, pledging to withhold donations from candidates unless they supported a public funding system for Congressional races. “I’d rather have campaign finance reform than access,” explained one of the members, Steve Kirsch, a businessman who says he funneled more than $10 million to back Al Gore in 2000. The effort was organized by Change Congress, a group founded in 2008 by political consultant Joe Trippi and activist/legal scholar Lawrence Lessig. So far the numbers have been tiny compared with the flood of private spending that is swamping our system—which is understandable, as this is an awfully risky strategy to pursue when the other side refuses to play along.

This is always the problem with organizing around secondary or “procedural” issues, and it is not an easy one to solve. What some people call “acting on principle” others might just as sensibly deem showing up for a gunfight with an iPad. With this in mind, some low-dollar donors on ActBlue, the largest liberal portal for online campaign contributions, are giving contributions to Democratic candidates who back reform. Blue America, a fundraising network that raised more than $500,000 for liberal candidates, has begun using support for the Fair Elections Now Act as a criterion for its endorsements. Even though public opinion overwhelmingly favors cleaning up Washington, these financial efforts are also crucial for paving an inside track toward reform, albeit slowly, cautiously and with decidedly mixed results.

Perhaps more promising was a strategy unveiled immediately after the 2010 election when a group of twenty-five investors announced the filing of shareholder resolutions at several corporations that sit on the board of the US Chamber of Commerce. The group demanded that these boards review their policies on and oversight of political expenditures, especially through trade associations, given the organization’s aggressive and partisan use of its funds during the midterm election as well as its role in helping to defeat Obama’s cap-and-trade legislation. The first four companies to receive this resolution are Accenture, IBM, Pepsi and Pfizer, with AT&T, Caremark, Caterpillar, Deere & Company, Dow Chemical, FedEx, JPMorgan Chase, UPS and Xerox soon to follow. Shareholder democracy is one of the most underutilized tools of political advocacy, at least by those on the left, but it has significant potential now that the courts have so weakened the strictures on corporate spending.

It is not so surprising that the problem of Senate reform comes down to the power of the purse, a problem the Supreme Court has greatly exacerbated in recent years with its corporate-friendly rulings in virtually all matters relating to money and speech. The most practical way to combat private financial influence in campaign funding is to reduce it. Yet as long as the Supreme Court continues to equate money with speech and corporations with people, legalized bribery will likely continue to corrupt the system. Absent an awakening on the part of a majority of Supreme Court justices, the only practical avenue to empowering the public interest in these battles is to subsidize campaigns. In this public funding system, candidates agree to cap their spending in exchange for government funding. The cost of campaigning drops, and the amount of money candidates accept from private donors is drastically reduced. And even though participation is voluntary, candidates are often eager to embrace it, given how much more enjoyable, to say nothing of convenient, it would be for them to cash a campaign check for a few million dollars than to endlessly work the phones begging rich folks for money.

Public funding is an elegant remedy to the problem of institutional corruption: instead of accepting legal bribes from donors in exchange for special consideration, candidates receive money from taxpayers in exchange for a pledge to spend less on their campaigns. And it works. Without much fanfare, public funding operated effectively for six consecutive elections, beginning in 1976, when candidates in both parties accepted funds and spending limits. The campaigns were cheaper, and the parties enjoyed relative financial parity. The parties split elections three to three during that period, and challengers beat incumbents in three out of the five races when incumbent presidents ran for re-election.

One obvious problem with the model is that it leaves one side at a disadvantage if it decides to opt in and the other side does not, as happened to John McCain in 2008. Moreover, even when Congress did pass the moderate McCain-Feingold legislation in 2002 (since decimated by the Supreme Court), it failed to pass the component of the bill designed to rationalize the cost of campaigns: a limit on what broadcast and television stations could charge for campaign commercials. The provision originally passed by the Senate 69 to 31, but it died in the House following furious lobbying by the National Association of Broadcasters and the cable television industry, leaving the United States alone among 146 countries in refusing to provide free television time to candidates. As a result, more money is needed to offset the recent explosion of private funding as well as the rising costs of political campaigns.

But presidential elections are not the main problem. Congress is. And its members have proven quite adept at protecting their prerogatives, particularly when it comes to retaining their jobs. The House and Senate have taken a range of small steps to regulate campaigns in recent years. They agreed to ban companies and unions from directly contributing to candidates, capped the amount that individuals can give, limited the use of “soft money” by the parties and regulated how independent groups spend money on television commercials. Even though these restrictions have had some impact on the margins of a few elections, they are far from the main event. The truth is that even though Congress supports public funding for presidential campaigns, it continues to resist public funding for itself. This is understandable. On Capitol Hill incumbents enjoy a consistent fundraising advantage over their challengers, and they like it that way. As the late Senator Robert Byrd declared in 1987, “The need for Congressional campaign financing reform is obvious, but just because it is obvious does not mean that it is easy to attain.”

* * *

Yet the times may be a-changing, if only for reasons of self-interest. William Cohen, a former Republican senator from Maine, told Charlie Rose in August that he found the pressure put on candidates for Congress by lobbyists to be “obscene,” adding, “If the American people saw what legislators go through…[with lobbyists saying] ‘Don’t forget we supported your campaign,’ I think the American public would finally turn against that.” This disgust is not confined to former officials and outsiders. Newer, younger members increasingly say the process is miserable and untenable. In a 2010 survey of freshman members, Politico found Congressional schedules packed with several hours of fundraising per day. That includes hours of “call time,” phone-banking potential donors from the “cramped cubicles” of campaign committee offices that one freshman likened to a “sweatshop.”

And it’s true at pretty much every level of politics. Indiana Democratic Senator Evan Bayh told Newsweek on the eve of his retirement, “It’s miserable. It is not uncommon to have a fundraiser for breakfast, for lunch, and for dinner, and if you have spare time in between, you go to an office off Capitol Hill and you dial for dollars. Then the weekend rolls around, and you get on a plane and travel the countryside with a tin cup in your hand. And it gets worse each cycle.” What’s more, in the most critical cases the majority of the money does not even come from within the states. In Democrat John Kerry’s 2008 Massachusetts Senate race, for example, two-thirds of both candidates’ contributions were from out of state. Consider the absurdity: wealthy donors who cannot legally vote on the outcome of a local election because the winner will not represent them can wield far more influence at the ATM than at the ballot box. (Tea Party activists who get so exercised about alleged violations of the Constitution by liberal Democrats might take a moment to consider the abrogation of the founders’ intent by the blatant practice of people who have no standing as voters buying elections. Then again, we might wait an entire lifetime for such an awakening. In the meantime, plenty remains to be done.)

Again, the clearest path to fixing this mess is voluntary public funding. The Fair Elections Now Act, which had more than 160 co-sponsors in the House and thirty-five in the Senate at the end of the last Congress, would create a public funding system for Congress modeled after the presidential system administered by the Federal Elections Commission. The act would allow candidates to collect $100 donations (or less) from residents of their own states, which would be matched four to one with Fair Elections funds. Fair Elections would be fully funded and would not cost taxpayers anything. This would dramatically reduce spending in a host of races in which outside donors dominate the process. That alone would open elections to candidates unable or unwilling to sell themselves to big funders. Moreover, it would nudge candidates back into the business of actual representation—which was, after all, the founders’ original intention when Congress was created. That the act made it through the Committee on House Administration in late September was a welcome and somewhat surprising development, but it is a long way from a Rose Garden signing ceremony.

A different tack, suggested to me by AFL-CIO president Richard Trumka, would be to accept that corporate campaign spending, defined as free speech by the Supreme Court, is a lost battle and to focus instead on redefining the meaning of the term “corporation.” Trumka suggests that those companies that wish to enjoy all the benefits of the law, such as limited liability and privileged tax status, agree not to engage in political agitation. Those that do choose to play politics will continue to have every right to do so but will be forced to forfeit the protections that incorporation implies. This reform is possible because states determine the rules and regulations of the corporations whose charters are located in those states. The obvious problem is that all fifty states would have to act as one because any single state could tie up the entire system. But it is indicative of innovative thinking about what have appeared to be insurmountable obstacles.

A glaring conflict of interest for members of Congress and their staffs is the tempting prospect of quadrupling their salary with a job after government service if they keep these potential employers happy. President Obama kept his campaign pledge and formally banned most lobbyists from working in his administration. That rule acknowledged the revolving door between government and industry, but it stopped people only on the way into government and only within the executive branch. The rule did nothing to address Congress, where the real horse-trading takes place. After all, the problem is less whether lobbyists come to work in government, where pay is lower, hours longer and financial disclosure forms far more onerous, and more whether people leave government to cash in on their connections (and sometimes even to be paid off for services rendered). When the top staffer for the House Banking Committee jumps ship for Goldman Sachs in the middle of a big fight over the regulation of Goldman itself and can do so without violating any federal regulations, old-fashioned bribery becomes unnecessary.

Until 2007 federal law required government officials to wait just one year before taking jobs lobbying their former colleagues. When Congress extended the break to two years and applied the law to a wider circle of Congressional staff and administration officials, it drove one senator into early retirement. Trent Lott of Mississippi, a former Republican majority leader, quit, Sarah Palin–style, before his term was up just to ensure that he could cash in on his old job without bothering to wait an extra year. The new regulation was a start. Yet the goal cannot simply be to inconvenience the future Trent Lotts of the world. It must be to root out the encouragement the system offers to staffers to sell themselves to the highest bidder.

But again, how? We need a lobbying ban to insulate our elected officials and their top staffers from the temptation to sell themselves while doing the people’s business and for a few years afterward. In business terms, ex-officials and their staffs need to be forced to protect their trade secrets and lay down robust noncompete clauses. A strong ban on employment with firms doing business under legislation covered by the elected officials and relevant staffers would need to run from eight to twelve years. In 2010 Senator Michael Bennet of Colorado introduced the Closing the Revolving Door Act, which would extend the ban on Congressional staff to six years and proposes a lifetime ban on members of Congress becoming lobbyists after they retire. Passage of this bill, which was referred to the Committee on Homeland Security and Governmental Affairs and at this writing remains stuck there, would restore some independence to government staffers and lawmakers while reducing the stack of chips corporate lobbyists bring to the legislative poker table. But given the turnover in government, even a break that spanned two or three presidential terms and five to seven Congressional sessions would ensure that public servants who turn to lobbying later in life would be trading on general knowledge of government, which is legitimate, as opposed to exploiting their personal relationships and inside information for the benefit of those who can afford to pay for it.

Voting Rights and Elections

Another item on the long-term reform agenda needs to be the question of democracy itself. American politics, with its anemic participation rates, invites too much influence in our elections for too many undemocratic forces. As the American Enterprise Institute’s Norman Ornstein has noted, to counter the oversized power of such minority interests, “in Australia, where failure to show up at the polls (you can vote for ‘none of the above’) leads to a $15 fine, attendance is over 95 percent—and politicians cater less to consultants and the extremes (since both bases turn out in equal proportions) and more to the small number of persuadable voters who are not swayed by outrageous rhetoric.” A few right-wing libertarians might cry “totalitarianism,” but most Americans would likely come to see mandatory voting as a reasonable way to ensure that everybody gets a say. After all, nobody’s being forced to vote “for” anyone, just to affirm their bona fides as small-d democrats, which is an essential component of citizenship.

The short-term problem with mandatory voting, however, lies not in its demands on individuals but in the inability of municipalities to locate and register voters who are legally entitled to vote and identify those who are not. Australia, as it happens, puts most of the onus to register voters on election authorities. Australian election officials gather information from government agencies to identify unregistered eligible voters and mail them the requisite voting materials. In this respect Australia is not unusual; the United States is. For example, according to one survey of sixteen nations and four Canadian provinces, only four place the onus of voter registration entirely on the individual, as the United States does, which helps account for this country’s anemic rates of political participation. The same goes for our unwillingness to allow people to vote on a weekend or a holiday, when they are not forced to miss work or to wait on line for hours merely to exercise their constitutional right to pick their leaders. (It is as if some politicians do not want people, particularly hourly wage workers, to be able to vote.)

As a step from here to there, the Brennan Center for Legal Justice has proposed a program to modernize voter registration practices that, if properly implemented, could increase the number of US voters by as many as 65 million. The plan would remove the onus of registration from citizens and place it on state governments, which would relieve election officials of the burden of last-minute registration and remove the need for third-party registration drives. By bringing the registration system into the twenty-first century, the plan would eliminate unnecessary bureaucratic processes, save states money, free precious resources for election officials and simplify the process for voters. It would make such registration automatic and permanent, bringing all eligible unregistered voters onto the rolls and keeping them there if they move. This is particularly important for members of the military and their families, students and, of course, the millions of victims of the foreclosure crisis, many of whom lack a permanent address. Some states have begun to adopt aspects of this program, but making it part of the progressive agenda would likely do wonders for a host of related priorities, particularly given the unrestrained spending by corporations and other interested parties in the wake of Citizens United.

A final item on this agenda for expanded and improved democracy needs to be the extension of the right to vote to ex-felons. Millions of Americans have had their right to vote revoked for periods ranging from the time spent incarcerated to a lifetime. In fourteen states a person can lose the right to vote for life. This is morally indefensible. In the United States the right to vote is not contingent on good behavior any more than it is on race, religion or ethnicity. And the idea that even after one has paid one’s proverbial “debt to society,” one must continue to pay with one’s right to vote makes no moral or political sense. Most of these laws are rooted in the Jim Crow era and were intended to bar minorities from voting; many continue to operate that way, with black and Latino voters, particularly men, discouraged or prevented from voting in numbers well beyond their proportion in the population. What’s more, as in the case of Florida in 2000, confusion regarding differing state felony disenfranchisement laws can easily result in eligible voters, sometimes even those with no disqualifying criminal conviction, being purged from the rolls or denied the ability to register to vote or cast their ballots. The provisions of the Democracy Restoration Act, introduced in Congress in July 2009 by Wisconsin Senator Russ Feingold and Michigan Representative John Conyers, would restore voting rights in federal elections to nearly 4 million Americans who have been released from prison and are living in the community, and would ensure that people on probation would not lose their right to vote. As a matter of fairness and strategy, this bill deserves the energetic support of all liberals and progressives.

Throughout our history, a more democratic America has consistently helped create a more progressive America, and these steps taken in support of improving democracy will likely help offset more reactionary developments in our political environment.

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Katrina vanden Heuvel
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